EXHIBIT 10.10
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT, dated this 1st day of January 2001, between Mac
Filmworks, Inc. a Delaware corporation, currently having its principal place of
business at 0000 Xxxxxxxxx Xxxx, Xxxxx X-0, Xxxxxxxxxx, Xxxxxxxxx 00000 (the
"Company"), and Xxx XxXxxxxxxx, Sr. (the "Executive"), an individual currently
residing at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxx 00000.
WHEREAS, the Company desires to employ Executive and Executive desires to
be employed by the Company, as President and Chief Executive Officer of the
Company.
WHEREAS, the Executive is willing to enter into an agreement with the
Company upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereto agree as follows:
1. Term of Agreement. Subject to the terms and conditions hereof, the term
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of employment of the Executive under this Employment Agreement shall be for a
period of three years commencing on the date hereof (the "Commencement Date).
Such term of employment is herein sometimes called the "Employment Term."
2. Employment. As of the Commencement Date, the Company hereby agrees to
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employ the Executive as President and Chief Executive Officer, and the Executive
hereby accepts such employment and agrees to perform his duties and
responsibilities hereunder in accordance with the terms and conditions
hereinafter set forth.
3. Duties and Responsibilities.
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(a) Duties. Executive shall perform such duties as are usually
performed by a President/Chief Executive Officer of a business similar in size
and scope as the Company and such other reasonable additional duties as may be
prescribed from time-to-time by the Company's board of directors which are
reasonable and consistent with the Company's operations, taking into account
Executive's expertise and job responsibilities. This agreement shall survive
any job title or responsibility change agreed to by Executive. Executive shall
report directly to the board of directors of the Company regarding
implementation of all business matters. All actions of Executive shall be
subject and subordinate to the review and approval of the board of directors.
No other person or group shall be given authority to supervise or direct
Executive in the performance of his duties. The board of directors shall be the
final and exclusive arbiter of all policy decisions relative to the Company's
business.
(b) Devotion of Time. During the term of this agreement, Executive
agrees to devote sufficient time and attention during normal business hours to
the business and affairs of the company to the extent necessary to discharge the
responsibilities assigned to Executive and to use reasonable best efforts to
perform faithfully and efficiently such responsibilities. During the term of
this agreement it shall not be a violation of this agreement for Executive to
(i) serve on the boards of corporations or charitable institutions (with the
permission from the Company's board of directors); (ii) manage personal
investments or companies in which personal investments are made so long as such
activities do not significantly interfere with the performance of Executive's
responsibilities with the Company and which companies are not in direct
competition with the Company; or (iii) provide services to Triad Family Media,
Inc., Xxx XxXxxxxxxx Productions, Inc., and all other companies that are
currently supported by Executive's services, however it is expressly understood
that Executive will limit his participation with the foregoing companies to no
more than 10% of his time. Any income received by Executive outside the scope
of his employment and permitted pursuant to the provisions hereof, shall inure
to the benefit of Executive, and the Company shall not claim any entitlement
thereto.
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4. Compensation and Benefits During the Employment Term:
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(a) Base Compensation. The Executive's base compensation from the
Commencement Date through December 31, 2001, shall be at the rate of $7,000 per
month, payable in regular semi-monthly installments in accordance with the
Company's practice for its executives, less applicable withholding for income
and employment taxes as required by law and other deductions as to which the
Executive shall agree. Executive acknowledges that initially such base
compensation may have to be accrued, based upon the Company's current working
capital. Such base compensation shall be subject to increases as and when
determined by the Company's board of directors in its sole discretion.
(b) Bonus Compensation. In addition to the Executive's base
compensation, Executive will be entitled to a performance bonus as determined by
the board of directors.
(c) Vacation. Employee will be entitled to three weeks paid vacation
each 12 month period during the Term.
(d) Expense Reimbursement. The Executive shall be entitled to
reimbursement of all reasonable, ordinary and necessary business related
expenses incurred by him in the course of his duties and upon compliance with
the Company's procedures.
(e) Participation in Employee Benefit Plans. Executive shall be
entitled to participate, subject to eligibility and other terms generally
established by the Company's board or directors, in any employee benefit plan
[including but not limited to life insurance plans, stock option plans, group
hospitalization, health, dental care (which health insurance shall also cover
Executive's dependents) profit sharing, pension and other benefit plans], as may
be adopted or amended by the Company from time-to-time.
5. Termination. Subject to the notice and other provisions of this Section
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5, the Company shall have the right to terminate the Executive's employment with
the Company, and the Executive shall have the right to resign from such
employment, at any time and for no stated reason.
(a) Disability. The Company shall have the right to terminate the
employment of the Executive under this Agreement for disability in the event
Executive suffers an injury, illness or incapacity of such character as to
substantially disable him from performing his duties without reasonable
accommodation by the Company hereunder for a period of more than sixty (60)
consecutive days provided that during such 60 day period the Company shall have
given at least ten (10) days written notice of termination; provided further,
however, that if the Executive is eligible to receive disability payments
pursuant to a disability policy paid for by the Company, the Executive shall
assign such benefits to the Company for all periods as to which he is receiving
full payment under this agreement.
(b) Death. This agreement shall terminate upon the death of Executive.
(c) With Cause. The Company may terminate this agreement at any time
because of:
(i) Executive's material breach of any term of this agreement, which
is not cured after ten (10) days written notice from the board of
directors.
(ii) the willful engaging by the Executive in misconduct which is
materially injurious to the Company, monetarily or otherwise;
provided, in each case, however, that the Company shall not
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terminate this Agreement pursuant to this Section 5(c) unless the
Company shall first have delivered to the Executive, a notice
which specifically identifies such breach or misconduct and the
Executive shall not have cured the same within fifteen (15) days
after receipt of such notice,
(iii) Executive's gross negligence in the performance of his duties,
or
(iv) commission by the Executive of a felony or an act of fraud
against the Company.
In the event Executive's employment with the Company is terminated pursuant
to items 5(a), (b) or (c), Executive or his beneficiary shall be entitled to
receive all base compensation earned by Executive up to the date of termination,
all unreimbursed expenses, and any bonus earned in respect of a prior year and
not yet paid. For a termination by the Company without good cause, Executive
shall be entitled to receive the greater of (i) the remaining base salary at the
then base salary rate for the remainder of the Employment Term or (ii) the base
salary rate for the period of six months, and all unreimbursed expenses, any
bonus earned in respect of a prior year and not yet paid, and the pro-rata
portion of any bonus for the current year.
6. Confidentiality and Non-Disclosure. In the course of the performance of
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Executive's duties hereunder, Executive recognizes and acknowledges that
Executive may have access to certain confidential and proprietary information of
the Company or any of its affiliates. Without the prior written consent of the
Company, Executive shall not disclose any such confidential or proprietary
information to any person or firm, corporation, association, or other entity for
any reason or purpose whatsoever, and shall not use such information, directly
or indirectly, for Executive's own behalf or on behalf of any other party.
Executive agrees and affirms that all such information is the sole property of
the Company and that at the termination and/or expiration of this Agreement, at
the Company's written request, Executive shall promptly return to the Company
any and all such information so requested by the Company.
The provisions of this Section 6 shall not, however, prohibit Executive
from disclosing to others or using in any manner information that (a) has been
published or has become part of the public domain other than by acts, omissions
or fault of Executive; (b) has been furnished or made known to Executive by
third parties (other than those acting directly or indirectly for or on behalf
of Executive) as a matter of legal right without restriction on its use or
disclosure; (c) was in the possession of Executive prior to obtaining such
information from Company in connection with the performance of this Agreement;
or (d) is required to be disclosed by law.
7. Arbitration. If a dispute should arise regarding this agreement, all
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claims, disputes, controversies, differences or other matters in question
arising out of this relationship shall be settled finally, completely and
conclusively by arbitration of a single arbitrator in Houston, Texas, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association (the "Rules"). Arbitration shall be initiated by written demand.
This agreement to arbitrate shall be specifically enforceable only in the
District Court of Xxxxxx County, Texas. A decision of the arbitrator shall be
final, conclusive and binding on the Company and the Executive, and judgment may
be entered in the District Court of Xxxxxx County, Texas, for enforcement and
other benefits. On appointment, the arbitrator shall then proceed to decide the
arbitration subjects in accordance with the Rules. Any arbitration held in
accordance with this paragraph shall be private and confidential and no person
shall be entitled to attend the hearings except the arbitrator, Executive,
Executive's attorneys, and designated representatives of the Company and their
respective attorneys. The matters submitted for arbitration, the hearings and
proceedings and the arbitration award shall be kept and maintained in strictest
confidence by Executive and the Company and shall not be discussed, disclosed or
communicated to any persons. On request of any party, the record of the
proceeding shall be sealed and may not be disclosed except insofar, and only
insofar, as may be necessary to enforce the award of the arbitrator and any
judgment enforcing an award. The prevailing party shall be entitled to recover
reasonable and necessary attorneys' fees and costs from the non-prevailing
party.
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8. Opportunities. During his employment with the Company, and for one year
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thereafter, Executive shall not take any action which might divert from the
Company any opportunity learned about by him during his employment with the
Company (including without limitation during the Employment Term) which would be
within the scope of any of the businesses then engaged in or planned to be
engaged in by the Company.
9. Survival. In the event that this Agreement shall be terminated, then
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notwithstanding such termination, the obligations of Executive pursuant to
Sections 6, 7, 8, 9, 10, 11, and 12 of this Agreement shall survive such
termination.
10. Contents of Agreement, Parties in Interest, Assignment, etc. This
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Agreement sets forth the entire understanding of the parties hereto with respect
to the subject matter hereof. All of the terms and provisions of this Agreement
shall be binding upon and inure to the benefit of and be enforceable by the
respective heirs, representatives, successors and assigns of the parties hereto,
except that the duties and responsibilities of Executive hereunder which are of
a personal nature shall neither be assigned nor transferred in whole or in part
by Executive. This Agreement shall not be amended except by a written
instrument duly executed by the parties.
11. Severability. If any term or provision of this Agreement shall be held
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to be invalid or unenforceable for any reason, such term or provision shall be
ineffective to the extent of such invalidity or unenforceability without
invalidating the remaining terms and provisions hereof, and this Agreement shall
be construed as if such invalid or unenforceable term or provision had not been
contained herein.
12. Notices. Any notice, request, instruction or other document to be given
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hereunder by any party to the other party shall be in writing and shall be
deemed to have been duly given when delivered personally or five (5) days after
dispatch by registered or certified mail, postage prepaid, return receipt
requested, to the party to whom the same is so given or made:
IF TO THE COMPANY ADDRESSED TO:
Mac Filmworks, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx X-0
Xxxxxxxxxx, Xxxxxxxxx 00000
WITH A COPY TO:
Xxxxxx & Xxxxxxxxx, P.C.
Three Riverway, Suite 1800
Xxxxxxx, Xxxxx 00000
IF TO EXECUTIVE ADDRESSED TO:
Xxx XxXxxxxxxx, Sr.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxx 00000
or to such other address as the one party shall specify to the other party in
writing.
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13. Counterparts and Headings. This agreement may be executed in one or
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more counterparts, each of which shall be deemed an original and all which
together shall constitute one and the same instrument. All headings are
inserted for convenience of reference only and shall not affect the meaning or
interpretation of this agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
MAC FILMWORKS, INC.
By: /s/ Xxxxxx X'Xxxx
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Xxxxxx X'Xxxx
Director and Executive Officer
EXECUTIVE
By: /s/ Xxx XxXxxxxxxx, Sr.
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Xxx XxXxxxxxxx, Sr.
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